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XY, LLC v. Trans Ova Genetics, LC

United States District Court, D. Colorado

August 9, 2018

XY, LLC, BECKMAN COULTER, INC., and INGURAN, LLC d/b/a STGENETICS, Plaintiffs,
v.
TRANS OVA GENETICS, LC, Defendant.

          ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS, DENYING MOTION TO AMEND COMPLAINT AS FUTILE, AND DENYING MOTION TO AMEND COUNTERCLAIMS AS MOOT

          William J. Martinez United States District Judge.

         In this lawsuit, Plaintiffs XY, LLC, Beckman Coulter, Inc., and Inguran, LLC (together, “XY”) bring patent infringement claims, as well as certain non-patent claims, against Defendant Trans Ova Genetics, LC (“Trans Ova”). Currently before the Court are three motions:

1. Trans Ova's Rule 12(c) Motion for Judgment on the Pleadings as to U.S. Patent No. RE46, 559 Under 35 U.S.C. § 101 (“Motion for Judgment on the Pleadings”) (ECF No. 138);
2. XY's Motion for Leave to File a Fifth Amended Complaint (“Motion to Amend Complaint”) (ECF No. 137); and
3. Trans Ova's Motion for Leave to File a Second Amended Answer and Counterclaims to Plaintiffs' Fourth Amended Complaint (“Motion to Amend Counterclaims”) (ECF No. 259).

         For the reasons stated below, the Court will grant the Motion for Judgment on the Pleadings, deny the Motion to Amend Complaint as futile, and deny the Motion to Amend Counterclaims as moot.

         I. BACKGROUND

         Broadly speaking, this case centers around technology that attempts to sort, and usually succeeds in sorting, non-human mammalian semen based on whether a sperm cell carries an X chromosome or a Y chromosome. Such “sexed semen” is useful in artificial insemination to ensure the gender of the offspring. One patent related to this technology is U.S. Patent No. RE46, 559 (“559 Patent”). Count XII of XY's Fourth Amended Complaint accuses Trans Ova of infringing “at least claim 1” of the 559 Patent. (ECF No. 74 ¶ 105.)

         The 559 Patent discloses a method that improves the accuracy of systems designed to detect the differences between “particles” of “at least two populations” during flow cytometry. 559 Patent at Abstract. When the “particles” are sperm cells and the “populations” are X-chromosome cells and Y-chromosome cells, a typical way to distinguish them under the current state of the art is to: (1) apply a special dye that bonds to the chromosomes and will fluoresce when struck with a laser beam; (2) “entrain” each dyed sperm cell in a fluid droplet that moves through a laser beam, causing the dye to fluoresce; (3) use a light-detecting mechanism to judge whether the cell contains an X chromosome or a Y chromosome (X chromosomes contain more DNA and so fluoresce more); (4) apply a charge to the droplet based on whether the light detector has detected an X chromosome or a Y chromosome; and (5) use charged plates to pull the droplet toward the collecting vial for X-chromosome cells or Y-chromosome cells, as the case may be. Id. at 1:53-61, 3:4-63.

         Sometimes the difference in fluorescence between X and Y chromosomes “may be so small” that “it may be difficult to categorize the data points into a population.” Id. at 3:67-4:4. The 559 Patent purports to overcome or ameliorate this problem by using two or more sensors (such as the light detectors in the above-described embodiment) that view the particles from different angles, thus providing multi-dimensional data. Id. at 4:10-6:48. The data can then be processed through multi-dimensional mathematical equations (what the patent calls “compensation algorithms”) that allow for rotation, translation, scaling, zooming, and tracking. Id. at 7:16-10:12. It is the application of these equations (not the idea of using more than one sensor to gather multi-dimensional data) that the patent claims to be novel. Id. at 6:52-7:25. The equations, alone or in combination, can show distinctions between detected signals (e.g., the light detected from fluorescing dye) that might otherwise go unnoticed, and so provide “[c]larity of delineation, . . . allow[ing] each population to be selected more accurately than in any other separation system.” Id. at 6:54-56.

         Claim 1 of the 559 Patent (the only independent claim) reads as follows:

A method of operating a flow cytometry apparatus with at least n detectors to analyze at least two populations of particles in the same sample, the method comprising:
(a) establishing a fluid stream in the flow cytometry apparatus with at least n detectors, the at least n detectors including a first detector and a second detector;
(b) entraining particles from the sample in the fluid stream in the flow cytometry apparatus;
(c) executing instructions read from a computer readable memory with a processor, the processor being in communication with the first detector in the flow cytometer, to detect a first signal from the first detector based on individual particles in the fluid stream;
(d) executing instructions read from the computer readable memory with the processor, the processor being in communication with the second detector in the flow cytometer, to detect a second signal from the second detector based on the individual particles in the fluid stream;
(e) executing instructions read from the computer readable memory with the processor to convert at least the first signal and the second signal into n-dimensional parameter data for detected particles in the sample, wherein the n-dimensional parameter data for particles from the at least two populations overlap in at least one of the dimensions;
(f) executing instructions read from the computer readable memory with the processor to rotationally alter the n-dimensional parameter data so that spatial separation of the data from the particles from the at least two populations in the at least one dimension that is overlapped is increased;
(g) executing instructions read from the computer readable memory with the processor to real-time classify each of the individual detected particles into one of a first population and a second population of the at least two populations based on at ...

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